Dallas Robertson v. Dallas Robertson d/b/a D & S Enterprises

**Injury No.:** 00-176543

Accordingly, we agree with the administrative law judge's conclusion that employee failed to meet his burden of proving Second Injury Fund liability for permanent total disability benefits.

We affirm and adopt the award of the administrative law judge, as supplemented herein. The award and decision of Administrative Law Judge Gary L. Robbins, issued September 6, 2012, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 23rd day of January 2014.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Subject: Dallas Robertson

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified to enter an award of permanent total disability benefits from the Second Injury Fund.

As the majority notes, all of the expert testimony in this case demonstrates that employee is permanently and totally disabled. The administrative law judge rejected this expert testimony on a finding that Drs. Poetz and Hanaway and the vocational expert Dr. Bernstein were not aware of employee's 4 or 5 months performing part-time consulting services for his local water district or engaging in a short-lived and unsuccessful run for the office of eastern district commissioner in Butler County. The majority appears to have rejected that rationale, and instead rendered a finding that employee is permanently and totally disabled but fails to meet his burden of proving Second Injury Fund liability because employee's business continued after his injury, or alternatively because employee's permanent total disability is due to a post-accident worsening of his medical condition.

With respect to employee's business, I agree that employee certainly could have better developed the evidence in this area, but it appears to me from a careful review of the transcript that employee lost the ability to perform any physical work for the business after the primary injury. Employee credibly testified he couldn't tolerate operating the business's dump trucks or the prolonged sitting it took to perform trucking jobs, and employee's brother, Earlie Robertson, provided credible testimony indicating that employee did very little after his injury, and that what little work he did perform was non-physical and in the nature of supervisory tasks. Employee also indicated that it was necessary to keep the business running beyond when the family wished to close it down, because of an ongoing contract with Allied Waste. Taking these factors into consideration, I am not convinced that the evidence regarding employee's family business continuing past the date of injury has any effect on the credible expert testimony assigning liability for employee's permanent total disability to the Second Injury Fund.

With respect to worsening of employee's medical condition after the work injury, I agree that the Second Injury Fund is not liable for permanent total disability benefits where an employee's permanent total disability results from a post-accident worsening of preexisting medical conditions or disabilities. Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793 (Mo. App. 1992). But the Commission is not entitled to substitute its lay opinion as to the cause of an employee's permanent total disability for the opinions of the testifying experts. In Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012), the Commission determined that an employee was permanently and totally disabled as a result of a post-accident worsening of his condition where no medical expert had so opined. Id. at 576. In reversing and remanding the case, the Court made the following observations:

Rather than choosing one of the medical opinions, the Commission made a finding that is not consistent with any medical opinion in the record. Because no medical expert concluded that Claimant was permanently and

totally disabled due solely to subsequent deterioration, the Commission's finding is not supported by substantial and competent evidence.

Id. at 581 (citations omitted).

I'm convinced the majority makes the same mistake here. No expert in this case has provided testimony that would support a finding that employee is permanently and totally disabled owing to a post-accident worsening of preexisting medical conditions, or due to medical conditions or injuries arising after he reached maximum medical improvement from the effects of the work injury.

Based upon the entire record, I find that employee is permanently and totally disabled as a result of the primary injury combined with employee's preexisting conditions of illbeing. I would modify the award of the administrative law judge to award permanent total disability benefits from the Second Injury Fund.

Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.

Curtis E. Chick, Jr., Member

Employee: Dallas E. Robertson

Injury No. 00-176543

Dependents: N/A

Employer: Dallas Robertson dba D\& S Enterprises

Additional Party: Second Injury Fund

Insurer: SAFECO

Appearances: Ellen E. Morgan, attorney for employee.

John J. Lintner, attorney for Second Injury Fund.

Hearing Date: June 20, 2012

Checked by: GLR/rmm

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? May 8, 2000.
5. State location where accident occurred or occupational disease contracted: Wayne County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was working on a truck and slipped on the step, tried to break his fall with his left arm and fell to the ground as he was exiting the cab.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Left shoulder, left knee and lumbar spine.
4. Nature and extent of any permanent disability: The employee settled his case with the employer-insurer for 5% permanent partial disability of the left shoulder, 22 1/2% permanent partial disability of the left knee and 12 1/2% permanent partial disability of the body as a whole referable to the lumbar spine.
5. Compensation paid to date for temporary total disability: 23,689.84.
6. Value necessary medical aid paid to date by employer-insurer: 12,536.77.
7. Value necessary medical aid not furnished by employer-insurer: 0.
8. Employee's average weekly wage: 500.00.
9. Weekly compensation rate: $266.66 for all purposes.
10. Method wages computation: By agreement.
11. Amount of compensation payable: See Award.
12. Second Injury Fund liability: See Award.
13. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ellen E. Morgan.

On June 20, 2012, the employee, Dallas E. Robertson, appeared in person and with his attorney, Ellen E. Morgan for a hearing for a final award. The employer-insurer was not represented at the hearing as they already settled their claim with the employee. Assistant Attorney General, Jonathan J. Lintner represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the statement of the findings of fact and rulings of law, are set forth below as follows:

1. On May 8, 2000 the employee sustained an accident or occupational disease arising out of and in the course of his employment. (This stipulation is subject to the findings in Issues 1 and 2).
2. The employer had notice of the employee's accident.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage is $\ 500.00 per week. His rate for all purposes is $\ 266.66 per week.
5. The employee's injury was medically causally related to the accident or occupational disease.
6. The employer-insurer pai